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A. REPLY 



TO THE 



HON. REVERDY JOHNSON'S 



iUtk 0tt the iKlmittijsittatian 



IN THE CASE OP 



Fitz Jolm Porter, 



CONVICTED OF SHAMEFUL MISBEHAVIOUR BEFORE THE ENEMY. 









.1^7^ .- 



BALTIMORE: 
PRINTED BY SHERWOOD & CO 
1863. 



A Reply to tlie Hon. Keverdy Johnson's 
Attack on tlie Administration. 



That a document purporting to be purely legal should call 
for a response such as this presented to the people of Mary- 
land, requires some explanation. 

In the first place we have to say that the Hon. Reverdy 
Johnson's reply to Judge Holt's review of the Fitz John 
Porter case is not in any sense a legal document. Mr. John- 
son's right, as an attorney, to appear in this case terminated 
when the evidence and finding passed from the Court to the 
hands of the President for approval. That the President 
should place the evidence before tlie Judge Advocate Gen- 
eral for a review, in no wise authorized Fitz John Porter or 
his attorney to tender an argument, as the President is in 
no position to hear such, or act upon its suggestions. In the 
trial the Hon. Reverdy Johnson had not only the last word, 
in accordance with the usages of courts martial, but had 
the only word, as the Judge Advocate declined addressing 
the Court. Mr. Johnson's duties as an attorney terminated 
witli the last words of his defence before the tribunal that 
tried Fitz John Porter. 

Not content with this, however, he appealed, not to the Presi- 
dent, but the public, and wants out of the case to make one 
against the Administration. In other words, the work we 
seek to answer is not a lawyer's brief, but a political pamph- 
let — conceived as such, jjriuted as such, seized upon, repub- 
lished, and widely circulated, to bring into contempt the 
Administration, which the author does not support. 
We find charged that for some evil purpose — 

1. The President of the United States packed the Fitz 
John Porter Court. 

2. That he corruptly rewarded the members op this 
Court for their dirty work by promotion, for which they 
were not worthy, and but for this service avould never 
have been so promoted. 

3. That this President neglected or refused to examine 
the evidence in the case, but referred it to his Judge Ad- 



#4 

vocATE General, that an argument might be made sustaining 

THE FINDING, AND EXCUSING THE CONDUCT OP Mr. LINCOLN. 

4. That this Judge Advocate General, to gratify the 
President, or from some other evil motive, distorted or 
concealed the evidence, so that Fitz John Porter has been 
sacrificed in the army, and greatly damaged in public 
estimation. 

These are grave charges, and if sustained, would prove 
the Administration a corrupt one, and Mr. Lincoln unworthy 
the support of honest men. To give them support, Mr. 
Johnson does not confine himself to the evidence brought 
before the Court. An attorney engaged in a legal investiga- 
tion would have been bound by such limits, established by 
long usage and a correct sense of justice; but the unscrupu- 
lous politician, seeking not to defend a client, but to attack 
an adversary, has no such restraint. 

Fortunately, a brief statement of a few facts, puts at rest 
this unprincipled assault upon the Administration. This 
will be found in the republication of three editorials which 
originally appeared in the "Washington Chronicle," and 
have evidently been prepared with great care, and, consider- 
ing the provocation, temperate and dignified. 

One fact overlooked or unknown to the author of these 
articles we hasten to state. 

At page 6 of this scuri'ilous and scandalous pamphlet, is 
found the following alleged excuse for its })ublication : 

"Pending the trial, the evidence of three of the leading 
"■ witnesses of the prosecution, Major General Pope, Brigadier 
'' General Roberts, and Lieutenant Colonel Thomas C. H. 
" Smith, was secretly and anonymously published in Wash- 
"ington, in pamphlet form, with a title-page, which, as evi- 
" dently intended, would lead the reader to suppose that it 
" contained either all the evidence in the case, or that the 
"evidence it did contain, was in no particular rebutted by 
" other proof" 

Now, we have in our possession a copy of the pamphlet 
thus referred to^ and we invite all who feel any interest in 
knowing the truth, to call and examine it for themselves.* 
Such examination cannot fail to satisfy them, that every 
statement made in regard to it, by Mr. Johnson, is wholly 
false. Instead of its containing the testimony " of three of 
the leading witnesses of the prosecution," as alleged, it con- 
tains the entire evidence of all the witnesses — fifteen in num- 
ber — who were examined in behalf of the Government, up to 
the time wlien tlie prosecution closed. It gives not only the 
testimony, in full, and unabridged, but all the decisions and 
»A copy of this has been deposited at the Baltimore Mercantile Library. 



proceedings of the Court, and is, word for word, as far as i t 
extends, the same record published afterwards by order of 
Congress. There was no secrecy whatever about its publica- 
tion. It passed through the press as other pamphlets do, and 
was distributed in the ordinary way. It was no more " anony- 
mous " than is the record published by Congress. The title 
given to it by the printer was : " Proceedings of a Cenera , 
Court Martial for the trial of Major General Fitz John Por- 
ter," and this title was strictly accurate. It did not declare 
or intimate that the pamphlet contained the loliole of the pro- 
ceedings, and had it even done so, such declaration or intro- 
duction could have misled nobody, since, at the time the 
pamphlet appear'ed, the trial was notoriously in progress, and 
witnesses for the defense were from day to day being exam- 
ined. 

If, however — whicli is denied — the tendency of the title- 
page had been to mislead, such tendency was at once correct- 
ed by the contents of the pamphlet itself Those who did 
not read it, could certainly have received from it no improper 
impression to the prejudice of Porter, and those who did read 
it, found at its conclusion the following entries : 

" The prosecution here closed." 

" The accused said : I have not been able to conclude my 
*^' preparations to enter upon ray defense. I therefore ask of 
"the Court a delay, until Wednesday morning next. From 
" that time forth, I expect to be able to push matters forward. 
" The Judge Advocate stated that the Goveimment had issued 
" summonses for some of the witnesses desired by the accused. 
"It had, however, exercised its discretion in regard to others 
"in active service, preferring to delay calling them from the 
" field until they were actually needed here. 

" He would make every effort now to have them sent for at 
" once. 

" The Court accordingly adjourned to 11 A. M., on Wednes- 
" day next." 

And with these words the pamplilet concludes. Now, how 
utterly insincere and calumnious to say, that " the reader " 
of a pamphlet' thus concluding, could "suppose that it con- 
tained all the evidence in the case," when it expressly de- 
clared that it contained only that for the prosecution, and 
that the examination of the witnesses for the defence would 
not begin until the Wednesday following? 

The reason for publishing this pamphlet immediately on 
the close of the testimony for the prosecution was in every 
way commendable. Soon after the commencement of the 
trial, garbled extracts and perversions of the evidence began 
to ai)pear in the interests of Porter, in various newspapers 



y 



under liis influence. In reference to these deceptive practices, 
we find the following entry recorded in the proceedings of 
the Court on 6th December : 

" The Judge Advocate here mentioned to the Court that 
'' gross inaccuracies in the publication of the testimony 
"given before this Court by Major G-eneral Pope, had been 
'"' brought to his notice as having occured in several newspa- 
" pers. 

''Wheupon the Court was cleared. 

" After some time the Court was re-opened, and the Judge 
"Advocate announced that in view of the statement made, 
" the Court desire the President of the Court to caution re- 
" porters, that if incorrect reports of evidence and proceed- 
" ings in this Court continue to appear in the public press, 
*' the Court may find it necessary to take such action as will 
"correct the above. 

" The President thereupon accordingly cautioned those re- 
" porters who were present." 

Notwithstanding this warning, the practice of garbling 
the testimony was continued, so that when the prosecution 
closed, the public was in possession of little more of the evi- 
dence than that which was supposed to be favorable to Por- 
ter. It was to correct the false impressions thus unworthily 
made, that this pamphlet was issued, and the country was 
thus put in possession of the whole testimony and proceed- 
ings of the Court, accurate and unabridged, up to the mo- 
ment when the accused entered upon his defence. 

In the well recognized line of his duty, a high-minded 
lawyer would hesitate preparing a defence in behalf of Fitz 
John Porter. But these are not ordinary times, and this is 
no ordinary case. 

Look at it. An officer educated by the public, a poor boy 
picked from the masses, and trained at jmblic expense, to 
be, not a soldier but an officer, and as such has honors 
thrust unwon upon him. Of all men this one at least, 
should have proved true to the kind Government and the 
trusting people to whom he owes so much. Yet, in the Ee- 
public's hour of sorest need, when the roar of rebel artillery 
was echoed from the walls of the Capitol, and our worn out 
forces were being pressed to defeat, he turned his back U!)on 
the field, and marched his fresh troops away, when their aid 
would have insured us a victory. 

For this he was arrested, tried and condemned, and now 
we find a gentleman of the United States Senate seeking to 
shield the traitor from the merited scorn of our people by 
unblushing falsehood, distortion of evidence, and an appeal 
to prejudice, that fail in their object, and succeed only in mak- 
ing their author a partner in the shame. 



This, too, when the strict duties and fixed rules of his 
profession cannot be plead in excuse. To the trying position 
of a paid attorney, he adds the odium of a volunteer friend. 
This place is of his own seeking, and he must hear the con- 
sequences. 

As if aware of the odium that would necessarily follow 
the attempt to shield a traitor by means so unworthy, we 
have at intervals, and in the close of this extraordinary "book, 
strained and grotesque eulogies of the Union. They are as 
applicable to the case as the many falsehoods, deliberately 
stated, which, since the trial, have been promulgated. 

What the evidence may have been, we are not called upon 
to consider. From it every one has a right, as had the court, 
to draw his own conclusions. This review is confined to re- 
futing the charges male by the learned counsel since the close 
of the investigation ; and having done so, we leave him to 
the better judgment of the public 



[From the Washington Chronicle of September 19, 18G3.] 

THE HON, REVERDY JOHNSON AND HIS "REPLY." 



Our attention lias been drawn to a pamphlet recently issued 
by this gentleman, professing to be " a reply to the review 
of Judge Advocate General Holt of the proceedings, findings, 
and sentence of the general court martial in the case of 
Major General Fitz John Porter." It consists, exclusive of 
the appendix, of eighty-two pages, and is the fruit of some 
seven months' meditation and research. Its prominent char- 
acteristic is a blustering self sufficiency, accompanied by an 
audacious and insolent spirit, as marked as its perversions of 
the law and the testimony are shameless. As a mere ebuli- 
tion of disappointed professional zeal, or even as a coarse as- 
sault upon the sensibilities and conduct of a number of our 
most faithful and distinguished public men, it would not be 
entitled to any serious notice, and certainly should receive 
none at our hands. It assumes, however, a much graver 
character than this. Mr. Johnson, having failed as the coun- 
sel of Porter to impress his views upon the Court, now seeks 
to appeal from the sentence pronounced on his client to the 
American people, in the hope of being able to invoke upon 
that sentence discredit and condemnation. It is a deliber- 
ate and most elaborate effort on his part to destroy public 
confidence in the military justice of the country, and to hold 
up before the world, as a martyr^ him whom the records of 
law and truth denounce as a dishonored criminal. It would 
be a national calamity were he to succeed in this unhallowed 
endeavor. The strength of our Government consists in the 
popular faith in the integrity of those who administer it, and 
that man who labors to impair this faith, without the fullest 
measure of proof, is a public enemy. The writer of this pamph- 
let, though claiming to appear in the character of a mere 
citizen, and sheltered, as he doubtless feels himself to be, by 
his national reputation as a lawyer, and by his position as a 
member of the United States Senate, has nevertheless been 
true to his original role of counsel, and as such faithfully 
represents the obtrusive egotism and malignity of his con- 
victed client. He tramples upon the many distinguished men 
coanected'^with this trial, as heedlessly as a maddened bull 



9 

paws the sands beneath his feet. He cliarges necessarily a 
want of integrity in the court by declaring that it must 
have determined on the sentence " before a word of the de- 
fence was heard;" he intimates by the most unmistakable 
implications, that its members, or a part of them at least, 
were rewarded — corruptly, of course — for the sentence they 
had pronounced ; that the principle witnesses were also re- 
warded for the testimony they gave ; that the President was 
guilty of both "weakness and injustice," and performed his 
high duty of approving the record without having examined 
or understood it, and that the Judge Advocate General was 
"prejudiced throughout," and had unfairly prepared his re- 
view for the President, to which the accused had no oppor- 
tunity of replying. The prominent witnesses, too, of the 
Government, though men of unsullied honor and lives, are 
treated with contemptuous sneers and stigmatized with 
the most offensive epithets. No such wholesale and ruthless 
aspersion of the motives of public men, acting under oath, 
has occurred in our history, and it is sufficiently evident that 
the Hon. Reverdy Johnson has engaged in an undertaking 
which must be considered large even for his powers, great as 
they are acknowledged to be. It is not our purpose to follow 
the course of his feeble and tortuous logic, but to meet him 
at several of the more salient angles of his windings, and to 
demonstrate how absurd and insincere is the pretension 
which this pamphlet makes to subject the review of the Judge 
Advocate General "to the ordeal of reason and truth." 

From the complaining spirit which pervades this pamphlet, 
many may infer that the court martial which tried Porter 
was forced upon him, and that he had no opportunity of re- 
sisting its organization as announced by the Government. — 
No conclusion could be more unjust. Had objections existed 
to any member of the court, it was his privilege to present 
them, and they would have been considered and allowed if 
ascertained to be well founded. At page 4 of the printed 
record, the following entry occurs : 

" The Court then proceeded to the trial of Major General Fitz John Porter, 
United States Volunteers, who was called before the c«urt, and, having heard 
the order appointing the court read, was asked if he had any objection to any 
member named in the detail. The accused replied that he had no objection." 

Those who were present on this occasion have not forgot- 
ten the unusual earnestness with which this answer was made. 
- Before the trial began, the Hon. ReverdyJohnson met one 
of the highest military officers of the Government — and one to 
whom it was especially proper that such a declaration should 
be addressed — and, alluding to the order appointing the 
court, he said : " We have seen the detail for the court, and 



10 

Gen. Porter is perfectly satisfied with it. He regards them 

ALL AS MEN OP THE HIGHEST HONOR AND INTEGRITY.'"' 

And why should not the accused and his counsel have been 
satisfied with the court? In view of the magnitude of the 
trial, the Government had been anxious to secure a court not 
only high in rank, but equally high in reputation. They 
were all generals, and two of them of the same grade with 
the accused. They had all served their country loyally and 
well in the field, and in private life they were as free from 
stain or repioach as the Hon. Reverdy Johnson himself can 
possibly claim to be. They were compromised neither by 
military nor political cliques, and everytliing connected with 
their history was a pledge that they would honestly keep 
their oath, " well and truly to try and determine according 
to the evidence " the case submitted to them. They per- 
formed that arduous and most responsible duty patiently, 
conscientiously and fearlessly, and the record which they 
have left of their action will abide any test to which it may 
be subjected. For the purpose of refreshing the recollection 
of our readers, we give the names of the members of the 
court in the order of tlie detail, viz : 

Major General D. Hunter, United States Volunteers, Pres- 
ident. 

Major General E. A. Hitchcock, United States Volunteers. 

Brigadier General Rufus King, United States Volunteers. 

Brigadier General B. M. Prentiss, United States Volunteers. 

Brigadier General James B. Ricketts, United States Vol- 
unteers. 

Brigadier General Silas Casey, United States Volunteers. 

Brigadier General James A. Garfield, United States Vol- 
unteers. 

Brigadier General N. B. Buford, United States Volunteers. 

Brigadier General L. P. Slough, United States Volunteers. 

The impression made, and doubtless intended to be made, 
upon the country by this pamphlet, is that Porter and his 
counsel considered themselves aggrieved by the manner in 
which the trial had been conducted, and that they were not 
satisfied witli, if not intensely indignant at, the spirit and 
rulings of the court. Nothing could be further from the 
truth than such an impression. Porter's defence, as read be- 
fore the court and printed, contains not one of the imputa- 
tions or complaints so elaborately presented in this " reply" 
The ruling of the court excluding his telegrams had been 
withdrawn, and all this testimony, about which so much 
clamor is made by Hon. Reverdy Johnson, had been received 
and considered ; his argument in the defence had been per- 
mitted to go to the court without any reply ; so that, alike in 



11 

the examination of witnesses and in the discussion upon their 
testimony, the accused had enjoyed every advantage tliat it 
was possible for him to claim. The bearing both of himself 
and counsel, indicated, unequivocally, that they were not 
only content, but delighted with the manner in which the 
case had been conducted and submitted. On this point we 
are not left to inference. A day or two after the trial, and 
before the sentence had been ])romulgated, or was known, the 
Hon. Reverdj' Johnson, speaking of the trial, used in the 
presence of several high officers of the Government* this lan- 
guage : " Whatever may be the result, neither General Por- 
ter NOR HLS friends CAN HAVE ANY GROUND OP COMPLAINT AGAINST 
THE COURT. I CONSIDER TUB TRIAL TO HAVE BEEN PERFECTY FAIR." 

These were remarkable words, and because they were re- 
markable, they have been well remembered. They were 
spoken unsolicited, openly, and with an honorable frankness 
and emphasis. They were truthful^ too — no motive for 
perversion and calumny having then arisen. They were 
uttered by one who, as senior counsel, had gone through the 
whole trial ; was familiar with every incident that had oc- 
curred in connection with it, and with the bearing alike of the 
court and of the Judge Advocate General. These incidents 
were still fresh in his memory, and in their presence, and in 
despite of any irritations which he might have encountered 
as counsel, he declared that the " trial had been perfectly 
fair." After the lapse of seven months, this same honorable 
gentleman writes a pamphlet of eighty-two pages, the lead- 
ing object of which is to prove that this same trial was most 
unfair, and that his oppressed client has been sacrificed as 
the victim of passion or corruption, or of both. What re- 
sponse shall be made to such an appeal from such a quarter ? 
That the opinion so distinctly announced was sincerely en- 
tertained, there can be no doubt. Nothing has since occurred 
to change that opinion. All the facts on which it rested 
were as well known to the author of this pamphlet then as 
they are now. Are we not authorized, therefore, to believe 
and affirm that the Hon. Reverdy Johnson regards the trial 
now as he did at its close, as " perfectly fair T' What a posi- 
tion to be occupied by a member of the United States Senate ! 
If we mistake not, the judgment of the American people will 
be that this stab at his country's honor has reached his own. 

We shall resume this subject hereafter. 

[From tlie "Wasliington Clironiele of Septemljex- S3, 1863.] 

While it is very clearly intimated in Mr. Johnson's pamph- 
let that Porter has been sacrificed for his political opin- 
*Amoiig them Major-General Halleck. 



12 

ions, and that his condemnation was resorted to by the Ad- 
ministration as a " a safety valve " for the " harmless escape 
of the indio;nation impending" a<i;ainst it because of Pope's 
"alleged disgraceful failure," and while many pages have 
been devoted to a superficial and disingenuous analysis of 
the testimony, it is evident that the writer's chief reliance 
for discrediting the sentence pronounced upon his client is in 
the assault which he makes upon the President, the Court, 
the Judge Advocate General, and the principal witnesses who 
testified on behalf of the Government. At page 11 of the 
pamphlet the following language occurs : 

Other things, too, happened, sn2;gestive of most unpleasant reflections — 
reflections casting more than a doubt on the mere abstract correctness of the 
court's sentence. Almost simultaneously with its publication, three of the mem- 
bers of the court were made Major Generals, all certainly most estimable gen- 
tlemen, and possibly, competent soldiers, but with no claim to such promo- 
tion. One of them, Maj )r Geaeral Prentiss, the only one of the three who, it 
is confidently believed, did not concur in the sentence, has recently proved 
himself worthy of his rank by his skillful defence of Helena, Arkansas. But 
the public in vain at the time endeavored to recollect any fact, as to either, 
calling for such an honor, and have not been more successful since, except 
(and very recently") as to Prentiss. And they have asked and still ask if their 
distinguished services and the good of the country required their elevation to 
such high rank, why was it not conferred before? And why, ivhy above. all, 
was it the iiiimediate sequence of the sentence against Porter? Who can an- 
swer satisfactorily either question ? None certainly has as yet come from any 
quarter. The President of the court, Major Genercd Hunter, was also imme- 
diately returned to a command from which he had been shortly before removed for 
acts if alleged mistaken policy or excess of authority, and from ivhich it had 
heen found necessary to remove him a second time. 

This bill of indictment against a body of as honest public 
men as ever assembled together^ could not, in its subtlety of 
insinuation, have been improved upon by lago himself. — 
While, however, the foul charge is thus conveyed hy innu- 
endo, it has nevertheless all the distinctness of an averment, 
though totally without its manliness. The most astonishing 
statement contained in the entire pamphlet is that here made 
in regard to Major General Hunter, It is full to the effect 
that he had previously to the trial been displaced from an 
important command, because of some "excess of authority" 
or "alleged mistaken policy " on his part ; that while thus 
virtually in disgrace, he was detailed as the President of the 
Porter court martial: and that immediately after the sentence 
he was restored to the command from which he had been re- 
moved — intending it therefore to be inferred, of course, that 
this restoration was a reward basely bestowed for his subser- 
vience to the wishes of the Government in condemning Por- 
ter. Could the country accept the Hon. Eeverdy Jolinson as 
of as high authority in matters of fact as he is generally 
regarded in matters of law, this allegation might inflict 



13 

an immedicable wound upon the reputation both of Major 
General Hunter and of the Administratiou. We, however, 
brand this statement in whole and in all its parts as 
ABSOLUTELY FALSE, and we appeal to the records of the War 
Depai'tment to sustain us in what we declare. Major 
General Hunter was not removed from tlie important com- 
mand wliich lie held in the South before the Porter trial, nor 
was he relieved from that command until recently, when he 
was succeeded by General Gilmore — a change which pro- 
ceeded from no dissatisfaction of the Government with Gen- 
eral Hunter, but simply from a desire that the liigh en- 
gineering skill and qualifications of General Gilmore might 
be exerted untrammeled in tlie siege of Charleston. Long 
after the acts of "alleged mistaken policy," "or excess of 
authority " had occurred. General Hunter asked for a leave 
of absence, and, as the order expressed it, "on his own ap- 
plication," the leave was granted him. He came to 
Washington. While here he was assigned to duty on several 
court martials, among them that of Porter, whicli resulted 
in extending his leave. Two loeeks 'before the adjournment 
of the court he received peremptory orders to return to his 
department immediately after the close, and he did so. He 
luas commander of the Department of the South before and dur- 
ing and after the trial. His status in the military service was 
in no way or degree affected by it or its results. What shall 
be said of a cause that requires to be propped by such a 
shameless fabrication as that which we have exposed ? This 
page may be received as a fair sample of the pamphlet, alike 
in its malevolence, and in its utter disregard of facts. Stone 
after stone has been laboriously rolled to the top of the liill 
by this Sisyphus of calumny, but tliey have only to be touched 
by the finger of truth to recoil crushingly U{)on liim as this 
has done. 

But there remains the charge "that almost simultaneously 
witli the publication of the sentence" — the 22d of January, 
1863 — " three of the members of the court were made major 
generals." The reference is to Generals Prentiss, Buford, 
and Casey. The records of the Department show, on the 
contrary, that the two first named were appointed on the 29th 
of November, 1862, and the sentence of the court was not 
pronounced until the lOtli of January following. It is true 
that General Casey was appointed a major general on the 
16th of January, 1863, but his appointment, in accordance 
with the usages of the service, was dated back to the 31st of 
May, 1862 — the day of the battle of Fair Oaks — and was 
made in acknowledgment of brilliant service performed by 
him on that memorable battle-field. This charge, then, so 



14 

confidently urged, when tested by the record, is found, like 
that against General Hunter, to be the coinage of the Hon. 
Reverdy Johnson's brain. Instead of three members of the 
court having " almost simultaneously with the publication 
of the sentence" been made major generals, but one was thus 
promoted, and he for previous distinguished conduct on a 
well known battle-field. But how can the promotion of 
General Casey be allowed to call in question the integrity of 
a sentence rendered, not by him alone, but by a court con- 
sisting of nine members? Is not the suggestion preposterous 
and insulting to the intelligence of the American people, and 
could a better proof be found of the desperation of the cause 
advocated by tlie writer of this pamphlet, than the fact that 
he has dared to rest so monstrous an imputation on such a 
basis as this ? 

A word in regard to the attack upon the bearing of the 
Judge Advocate General. At page 9 of the pamphlet, it is 
alleged that the President rested his judgment " on tlie ar- 
gument of his Judge Advocate alone, without collating it 
even with the portions of the evidence quoted by that officer, 
much less with all the evidence so material to understand 
properly and justly the portions quoted, or even stopping to 
discover^ ivhat is thought to be quite apparent, the depth of the 
prejudice ivhich that officer entertained towards the accused." 
At page 15, referring to the Judge Advocate General, Mr. 
Johnson says : "And to this, and with an earnestness that 
evinces a burning desire for success, he addresses himself, with 
poetic license," &c. At page 24 he thus speaks: " In this 
part of tlie case, and indeed throughout, the prejudice of the 
Judge Advocate General reveals itself" When it is remem- 
bered ihat the Judge Advocate of a militai-y court is by law 
the counsel as well of the accused as of the Government, and 
performs his duties under the same solemn responsibilities 
under which the court itself acts, the flippant recklessness of 
this accusation will be understood and appreciated. In its 
complete refutation, we might safely appeal to every member 
of the court, and to those who attended the trial, all of 
whom, we doubt not, would bear testimony to the strict im- 
partiality with which tliis officer conducted the prosecution, 
and to the ceaseless solicitude lie manifested that everything 
wliich in any degree tended to illustrate the defence should 
be received and considered by the court. We have, however, 
more conclusive evidence to offer than this — evidence which 
probably even the author of this pamphlet will respect, 
though he seems to respect nothing that comes in conflict 
with the interests and passions of his client. 

In the proceedings of the court martial, printed by order 
of Congress, the written defence of Porter, which is signed 



15 

by him, and was read to the court, is embodied. At page 
256 of that volume, in the opening of the defence, Porter 
used this emphatic language: "Your eminent official law 
adviser, (the Judge Advocate General,) iclio has conducted the 
prosecidion calmly and fairly so far as on Mm depended, hut 
ivith the vigilance and energy ivhich his duty demanded," &c. Ifc 
is well known that the defence, in whicli tliose words occur, 
though' bearing the signature of Porter, was the joint pro- 
duction of Hon. Reverdy Johnson and his associate, Mr. 
Eames, and was read by them jointly to the court, and 
doubtless all its statements had their fullest sanction. No 
words could have expressed a more earnest and frank testi- 
mony to the impartial spirit and conscientious fidelity with 
which the Judge Advocate General discharged his duties 
throughout this prolonged trial. Under the same high re- 
sponsibilities under which he conducted the prosecution, he 
prepared his review for the consideration of tlie President. — 
He needs no other vindication from the imputation now cast 
upon him than that which results from placing the language 
of his accuser side by side with that which we have quoted 
frorr Porter's defence. 

Wo shall hereafter notice the groundless exceptions that 
have been taken to the circumstances under which the review 
of the Judge Advocate General was prepared. 

[From tUe Washiington CUroiiicle of September 23, 1863.] 

When the sentence on Fitz John Porter was promulgated, 
it did not occur to anybody to call in question the integrity 
of the court or of the Government in organizing it. That 
was an idea which seems long after to have originated with 
Mr. Johnson, counsel of Porter, and its elaboration was the 
leading object of this pamphlet. At the time the sentence 
was made known, the disappointment and resentments 
of Porter and counsel were displayed in attacks upon the 
Judge Advocate General, who, they alleged, had taken an 
unfair advantage of the accused in preparing a review for 
the President, to which no reply was permitted. As no re- 
sponse was ever made to these complaints, it is altogether 
probable that with many they were the means of exciting 
prejudice against that officer. The same complaint, accom- 
panied by an unblushing perversion of a well known legal 
principle, is now made in the pamphlet under consideration. 
At page 10 it is said: " The rule of military law, as laid down 
by Charles L. Napier, is now well settled, that, no matter 
how many addresses are made by either party, "^ the prisoner 
has the right to speak last.' — Benet, 123-4. In this instance 
the ride loas grossly violated. The last speech loas made by 



16 

the Judge Advocate. Porter was not only not permitted • to 
reply, but the existence even of the review was apparently 
concealed from liim," &c. Tlie Journal of Commerce, under 
the inspiration of this oracular exposition of the law, ven- 
tures to go yet further, and declares that " contrary to all 
precedent and all propriety, the counsel of the prosecution, 
having in open court declined to answer the argument of the 
accused, furnished a private review of the case to the Presi- 
dent, to which the counsel for the defence had no opportuni- 
ty to reply," &c.; and this statement is re-published, with 
expressions of approbation, by the Louisville Journal and 
other papers hostile to the Government. A lack of acquaint- 
ance with the machinery of the Government in this branch 
of the public service may have led these papers into this repre- 
sentation, which is as untruthful as it is unjust to the 
officer assailed ; but there is no sucli excuse for the author of 
this pamphlet, who, having been Attorney General, and be- 
ing perfectly familiar with all the details of public duty, and 
with the usages of the Executive Administration, must know 
that the position he has assumed on this point is without 
foundation. 

The review of the Judge Advocate General was in no sense 
"a private review." Its having been furnished under the 
written direction of the President would of itself have ren- 
dered it an official paper. Apart, however, from this direc- 
tion^ and independently of it, the act was not only official 
but strictly in the routine of daily official service. The case 
being that of a general officer, the President, under the arti- 
cles of war, was charged with the duty of approving or dis- 
approving the sentence, and the record necessarily went 
before him. It is well known, also, that there are other 
numerous classes of cases, where life, or confinement in the 
penitentiary, or the dismissal of a commissioned officer is 
involved, which existing laws and the usages of administra- 
tion require to be submitted to the President. For him to 
examine, personally and thoroughly in their details, the 
records in all these cases — so vastly increased in number 
since the commencement of the rebellion — would, with his 
other duties, be a physical impossibility. Hence, as all these 
records pass through the office of the Judge Advocate Gen- 
eral, and from his hands into those of the President, it has 
become a necessity that each of them should be accompanied 
by a review, prepared in the Judge Advocate General's office, 
presenting at once a summary of the testimony and of the 
opinions entertained upon the legal questions arising. — 
These reviews are, some of them, brief, while others are very 
extended, each of course depending for its character on the 



17 

character of the record to which it relates. Such a review 
would, according to fixed usage, have been prepared of the 
Porter record, even without tlie written direction of the 
President, whicli was probably given only because of his wish 
that the case should receive immediate attention. While 
these reviews lighten the labor of the Cliief Magistrate, they 
do not relieve him from the obligation thoroughly to under- 
stand each case before deciding it — an obligation which has 
never been more conscientiously fulfilled by any President 
than by Mr. Lincoln. The action, therefore, of the Judge 
Advocate General in the preparation of this paper was in 
no degree exceptional, but was a frank and faith fnl discharge 
of one of the ordinary and daily recurring responsibilities of 
his position, and was in accordance with both " precedent and 
propriety." 

But an outcry is raised because Porter was not allowed an 
opportunity of replying. No complaint could be more 
groundless. There is in the office of tlie Judge Advocate 
General a volume of similar reviews of the records of courts 
martial, made since the beginning of the war, to not one of 
which was a reply made, nor in a solitary instance was the 
right of making such reply ever claimed by the accused. 
The President is not a court before which causes are to be 
argued by contending parties — although under extraordinary 
circumstances he might permit sucti argument — and were he 
ordinarily to assume such a status, the performance of his 
ever-pressing and multifarious duties would be absolutely 
impracticable. Communications, verbal and written, are con- 
stantly made to him by the heads of departments and others 
in the executive service in regard to questions pending before 
him, but no right to answer such communications on the part 
of those aifected thereby has ever been insisted on or known. 
Of course, if the President entertains doubts, he may seek 
information in any quarter where he supposes it likely to be 
found ; but this does not affect the force of the general rule 
as stated. Of its accuracy Mr. Johnson, a former member of 
the Cabinet, must be fully aware, and no one comprehends 
better than he does how utterly incompatible with the prac- 
tical dispatch of the public business would be a diff'erent 
course of administration. 

But Mr Johnson quotes the recognized principle of law 
" that the prisoner has the right to speak last," and then de- 
clares that "this principle was grossly violated" by the 
preparation of the review, and that " the last speech was 
made by the Judge Advocate." Now, every lawyer under- 
stands that this doctrine of the right of ''the prisoner to 
speak last " applies to the proceedings during the trial before 



18 

ilie court martial and to nothing else. The President was not 
a part or prolongation of tlie court martial, nor was the re- 
view of the Judge Advocate addressed to him, a paper to 
which the doctrine of the " last speech by the prisoner " could 
have any possible application. In trutli, before the court — 
where alone the principle of law applies — Porter had not 
only " the last speech," but the only speech that was made. 
Tiie Judge Advocate G-eneral forebore to answer this speech, 
because he regarded tlie testimony as too clear and conclusive 
to require comment on behalf of the prosecution. Those 
familiar with military courts know that in the great majority 
of cases this course is pursued by the Judge Advocate, and, so 
far from its indicating a purpose to "submit to a judgment 
by default," it indicates just the contrary. 

It was certainly well understood by the court and all con- 
cerned — simply because such was the law — that, if the Judge 
Advocate General answered before the court tlie argument 
of the defence, the accused should have the right to reply. 
But the Judge Advocate General, with a forbearance which 
the counsel of the accused should rather have commended 
than condemned, did not think proper to make such answer, 
and of course there was nothing to which a reply could be 
offered. If it is intended to be intimated by Mr. Johnson 
that there was or could have been any other or different 
understending than this, such intimation is unjust, as is the 
manifest endeavor to excite distrust of the Judge Advocate 
General because he continued with the court after its doors 
were closed. At page 5 Mr. Johnson says: "The court was 
then cleared, no one remaining ivlth them but the Judge Advo- 
cate." And again : " The court was then cleared, the Judge 
Advocate again 7'emaining with them," &c. Now, no one can 
mistake the insidious purpose of these words ; and yet when 
he penned them Mr. Johnson well kncAv that when the court 
is cleared it is as much the duty of the Judge Advocate to re- 
main wifcli it as any of its members, and that he coidd not 
withdraio from it ivitltout violcding the obligations inseparable 
from his position. 

This review was conscientiously and most carefully pre- 
pared, It has dragged to the light and made intelligible to 
all a crime to which the past of our country offers no paral- 
lel — a crime whose history is written in the blood of a brave 
and struggling army, Avhich was abandoned to its fate in its 
extremest need, by one who was able and who was bound by 
every obligation of duty, of patriotism, and of courage, to 
have rushed to its relief. With such a crime no loyal citizen, 
no honorable man, can possibly have sympathy. Fortunately 
for the cause of jiublic justice, the entire record of this trial has 



19 

now been published by order of Conj^ress. The more tlior- 
oiiglily and lionestly it is scpitinized by the country, the more 
clearly will it appear liovv immoval)ly this review stands upon 
the testimony, and how unassailable is every conclusion it has 
reached. The wonder of military men, who understand the 
atrt)oity of Porter's offence in all its bearirii!;s is, not that he 
was condemned, but that his lile whs spared. The court 
mai'tial might well have sentenced hitn to death, and they 
forbore to do so, in all probability, only because they i'elt that, 
as a walking, blasted monument of treachery to liis country's 
flag, he would he a warning to otlieis iar more effective than 
any voice which could issue from the iU.'[)ths of his dishon- 
ored but perhaps ibrgotten grave. 



